Dismissal, compensation, postponement

25 September 2018

This article was featured in the October 2018 issue of the magazine.

Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases

Patel v Folkstone Nursing Home Ltd

In the case of Patel v Folkestone Nursing Home Ltd the Court of Appeal (‘the Court’) was asked to determine if an employee could claim unfair dismissal despite their earlier appeal being accepted. The employee, Mr Patel, had worked at the nursing home as a healthcare assistant before being dismissed for gross misconduct in April 2014. The employer originally found Patel guilty of sleeping on duty and falsifying residents’ records, the latter of which he was told would result in him being reported to the care home register for putting residents at risk. 

Patel was able to successfully appeal the decision and received a letter in June 2014 confirming his dismissal had been overturned. The letter acknowledged that he had only slept during designated rest breaks and therefore did not break any rules. However, it failed to make reference to the alleged falsification of records or the employer’s plans to report him to the care homes regulator. Mr Patel requested clarification on this point; however, when it was not forthcoming he refused to return to work and proceeded to lodge a claim for unfair dismissal. 

The initial Employment Tribunal (ET) held that the employer’s decision to accept Patel’s appeal did not automatically undo the dismissal, meaning he was entitled to consider himself dismissed and bring forward a subsequent claim for unfair dismissal. The ET based their ruling on the fact that there was no provision within Patel’s contract of employment which explicitly stated a dismissal would be wiped out immediately following a successful appeal. They also added that the appeal outcome letter was unclear as it failed to address the critical allegation of falsifying patient’s records. 

The employer appealed this decision to the Employment Appeal Tribunal (EAT) which was asked to determine if Patel had actually been dismissed or if his original dismissal was considered to have vanished as a result of the appeal decision. The EAT overturned the previous decision and held the appeal outcome letter sent by the employer was sufficiently clear to revoke the original dismissal, despite not making reference to the allegation of falsifying records. The EAT stated that regardless of whether there is an express provision in an employment contract, the decision to lodge an appeal is made on the understanding that the employment will be automatically revived once the appeal is successful.

This decision was appealed once more to the Court of Appeal which ruled that the EAT was entitled to find that Patel was unable to claim unfair dismissal as his original dismissal was considered to have vanished following the outcome of the appeal. The Court went on to explain that unless it is specifically stated otherwise in the contract of employment, “the implicit nature of a successful appeal” automatically revives the employment relationship and extinguishes the original dismissal decision. 

This ruling should clarify the notion that the successful appeal of a dismissal immediately reinstates an individual’s employment. Employers should also take this case as an indication of the importance of drafting a clear appeal outcome letter which addresses all allegations that have previously been lodged against affected individuals. 


...an indication of the importance of drafting a clear appeal outcome letter which addresses all allegations...


Santos Gomes v Higher Level Care Ltd

In the recent case of Santos Gomes v Higher Level Care Ltd the Court of Appeal was asked to determine whether an employee was entitled to compensation for ‘injury to feelings’ because her employer failed to facilitate an adequate number of rest breaks. 

Santos Gomes had worked for the employer, which provided accommodation and support to vulnerable young people, from February 2013 to May 2014. It came to light that during her employment she had been denied the requisite rest breaks that were owed to her under the Working Time Regulations 1998 (‘the Regulations’). She had specifically been denied her rest break of twenty minutes on numerous occasions when working shifts of over six hours, which she said had resulted in damage to her health and wellbeing. 

The claimant brought this claim, amongst others, to an employment tribunal which ruled that the employer had failed to abide by regulation 30 of the Regulations, by denying her the appropriate rest breaks, and awarded the claimant £1,200 in compensation. However, the tribunal was not inclined to agree with Santos Gomes’ claim that she was owed additional compensation due to injury to feelings under regulation 30(4)(a) which states compensation should be “just and equitable”. 

In dismissing this claim the judge explained that this regulation did not provide for compensation for injury to feelings and that this award was limited to cases involving discrimination in line with the Equality Act 2010. 

Santos Gomes decided to appeal this decision seeking further compensation; however, the EAT similarly dismissed her claim. In its decision the EAT noted that the claimant was herself unable to point to any prior instance in which injury to feelings compensation had been awarded in a claim not involving a form of discrimination. The EAT summed up that withholding rest breaks was the equivalent to a breach of contract and that the original tribunal had ruled correctly in their case.

Despite this the claimant proceeded to lodge an appeal with the Court of Appeal. She also noted the existence of European Union regulations on the matter and requested that if it was unclear how domestic law should be interpreted in line with these regulations then reference should be made to the European Court of Justice (ECJ). 

The Court accepted that the previous decisions of the ET and EAT had relied on statute and therefore decided to explore existing case law. Although they found that previous cases had in fact ruled that injury to feelings compensation could be granted in situations other than discrimination, these examples had all involved detriment on the grounds of trade union membership and were therefore not comparable. The Court therefore concluded that the ET and EAT had acted correctly in these circumstances, dismissing the appeal and the claimants request to refer the case to the ECJ. 

This ruling reiterates clearly that the intention of the wording contained in the Regulations is not designed to allow additional compensation for injury to feelings when it comes to withholding rest breaks. 


...outlines the importance of allowing employees the ability to reasonably postpone their dismissal hearings... 


Talon Engineering Limited v Smith

In the case of Talon Engineering Limited v Smith, the EAT was asked to determine if a dismissal decision where the employer refused to postpone the disciplinary meeting could be considered unreasonable. 

Issues first occurred when Mrs Smith, who had worked for the employer from 1994 to 2016, was found to have sent a series of emails to a customer using insulting and offensive language to describe a colleague. Smith was suspended and invited to a disciplinary hearing; however, this initial hearing had to be postponed due to sickness and pre-arranged annual leave commitments. Smith was invited to a second hearing scheduled for after her return; however, her union representative, whom she wished to accompany her, was not available for a further two weeks. Her request to postpone the meeting further was rejected by the employer, who proceeded with the hearing without Smith in attendance and decided to summarily dismiss her. 

Smith proceeded to bring a claim for unfair dismissal to ET, arguing that her dismissal was unfair as she was not afforded an opportunity to postpone the disciplinary hearing to a time when her union representative was available. In the ruling the ET held that although the employer had shown a potentially fair reason for dismissal, their decision to dismiss was procedurally unfair. They added that all reasonable steps should have been taken to allow Smith to attend her disciplinary hearing, including allowing a second postponement, and that no reasonable employer would have refused this request. The ET awarded Smith £22,257 in compensation as a result. 

The employer proceeded to appeal this decision with the EAT, believing the ET had made a mistake in substituting their own views for those of the employer. They also referenced the wording of section 10(5) of the Employment Relations Act 1999, which states an alternative time for postponed hearings must “be reasonable and fall before the end of the period of five working days”. 

Despite this the EAT dismissed the employer’s appeal, rejecting their argument in relation to section 10, as Smith’s initial claim was for an unfair dismissal under section 98 of the Employment Rights Act 1996 for a refusal to postpone the disciplinary meeting, not for any breach of the right to be accompanied. The EAT concluded that the initial tribunal was correct to find that the employer was hasty and unreasonable in their actions and that the subsequent dismissal was unfair. 

This outlines the importance of allowing employees the ability to reasonably postpone their dismissal hearings, particularly where this is to accommodate a period of ill health, pre-arranged annual leave or trade union involvement. Even if the decision to dismiss is for potentially valid reasons employers must always allow employees access to the correct procedure to avoid claims of unfair dismissal.